1990 PLP 1518 (CLC)

Date of hearing: 24th August, 1987. These two appeals arise out of similar two orders passed by VIth Rent Controller, South Karachi on 11‑3‑1987 whereby the application for execution of decrec of ejectment was allowed against the present appellants, therefore, they arc being disposed of together alongwith the C.MAs. Nos.805 and 806 of 1987 which are applications for stay. The relevant facts are that on 10‑12‑1966 respondent received a letter of sanction of plans from K.M.C. in respect of the disputed building out of which two tenements are in possession of the present appellants. On 12‑12‑1966 the plan were duly sanctioned by the K.M.C. and in April, 1968 application for ejectment was filed by the respondent against the appellants for the purpose of reconstruction of the building. During the pendency of the proceedings the sanction of plans was renewed by the KM.C. on 5‑6‑1969 upto the period of 30‑5 197t) After recording of evidence the ejectment application was dismissed by the Rent Controller as he did not find a bona fide requirement for reconstruction of that building. The First Appeal filed by the respondent was dismissed in 1974 but on 8‑10‑1979 the two Second Appeals Nos.160/74 and 161/74 filed by the respondent were allowed by the High Court and it was held that the respondent required the premises for demolition and reconstruction of a new building reasonably and in good faith. In arriving at that conclusion the High Court had taken into consideration the admission made by the respondent that he would be prepared to accommodate the present appellants, in the new building. There was however an observation made by the Honourable; Judge of the High Court in the two appeals that since there were other tenants involved against whom ejectment applications were pending, therefore, the execution against the appellants cannot be allowed until the cases of two other tenants namely Altaf and Ghulam Ahmed were finally disposed of. It may be observed here that the respondent has obtained the ejectment orders against Altaf and Ghulam Ahmed and they have also been executed and the possession has been obtained from them by the respondent. The respondent thereafter filed execution application against the present appellants. The appellant's counsel took objection against the execution and Mr. Sadiq has informed me that he took up the position that in view of section 6 of the Sindh Building Control Ordinance, 1979 an execution application could not be granted. The learned Rent Controller, however, did not agree with this submission and passed the following order on 11‑3‑1987:‑ "Heard advocate for applicant D.H. The counsel for opponent is absent. The cases of Altaf and Ghulam Muhammad were disposed of by High Court on 27‑11‑1983 and even the possession has been taken on 18‑4 1985. There remains nothing in the way of D.H. The application allowed Issue writ of possession: " Mr. Sadiq submitted that in view of section 6 of Sindh Building Control Ordinance promulgated on 3‑3‑1979 the execution of decree of ejectment could not be allowed as there was no approved plan for reconstruction in existence To consider the submission of the counsel it would he necessary to reproduce the relevant provisions of section 6 of the said Ordinance which are as under:‑ "

6. Approval of plan.‑‑‑(1) No building shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted no objection certificate for the construction thereof on payment of such fee as may be prescribed: Provided that in the case of a building the construction whereof has commenced before coming into force of this Ordinance, the Authority's approval of the plan and no objection certificate shall be obtained not later than six months after the enforcement of the Ordinance It appears to me that the submission of the appellants' counsel is not correct. In the first instance the provisions of section 6 do not provide a bar in respect of either passing of a decree of ejectment or in respect of execution of an ejectment decree and, therefore, the same arc not relevant for the purposes of this appeal. It is an admitted position that when the ejectment application was filed by the respondent in this case it was supported by a valid plan duly sanctioned accompanied by a letter of K.M.C. Even till the time that the application came up for final judgment on 31‑3‑1970, the sanctioned plan had been duly renewed upto 30‑5‑1970 and was, therefore, in full effect. Thereafter the appeals proceeded on‑the basis of the said record and finally the ejectment was ordered by the High Court on 2‑10‑1979 which was seven months after the promulgation of Sindh Building Control Ordinance, 197). It is, therefore, obvious that if the appellants wanted to place reliance on the provisions of said Ordinance, then they should have urged the same before the High Court in the Second Appeal and they having failed to do so, they cannot be allowed to urge the same now. Moreover, section 6 of the said Ordinance is not applicable to a decree of ejectment which has been passed in pursuance of a duly sanctioned plan. I am further of the view that the ejectment order on the basis of sanctioned plan granted before the coming into force of this Ordinance cannot be made ineffective by the provisions of subsection (1) of section 6 of the said Ordinance which is prospective in its effect. The eviction applications had to be disposed of on the basis off law which was applicable when the applications for ejectment were filed. The executing Court has done nothing wrong by allowing execution of an order of ejectment which had been passed by the High Court in October, 1979. The condition for execution that case of ejectment against Ghulam Muhammad and Altaf should be disposed of before the execution of ejectment against appellant was allowed, has already been satisfied and these persons have been ejectment in pursuance of orders of the Court. The respondent has waited for about 8 years to have his decree satisfied and it is most unfair for the appellant to raise a fresh point in resisting the execution which could have been available to him in April. 1979 onwards but which he did not raise before the High Court. The appellant is not entitled to raise the same in execution as it amounts to raising altogether a new point. How long can we allow the delay in execution of a decree'.' In fact the proceedings are 20 years old and the appellant should feel satisfied that he has not been ejected even after the lapse of 20 years. But the judgment passed in 1979 should at least be executed now in 1987. Moreover, in 1981 S C M R 782, the Supreme Court has observed, "renewal of plans is a mere formality and that it was not reasonable for landlord to get the sanction renewed every year during pendency of proceedings". Therefore, the ejectment should poi, therefore, be refused on such technical formality I may note in passing that Mr. Sadiq had relied upon judgment of a Single Judge of this Court in IInd Appeal No.7/1985, where it was held that approval oft' Building Control Authority was necessary in respect of building plan after 1979. But the same is not applicable in this case because in that case no approved building plan had been produced at all and moreover, the same was not a decision in execution but was a judgment in IInd Appeal and the learned Judge had simply remanded the case for reconsideration, therefore, the said judgment is not applicable in respect of an execution, where the ejectment order had been obtained as far back as in 1979, and the plea of lack of building plan had not been raised by the.. appellant at that time although it was available to him. These two appeals and the Misc. Applications were, therefore, dismissed by a short order on 24‑8‑1987 for the above reasons. A.A/ N-281/K Appeals and Applications dismissed.